Abortion and RFRA

[Douglas Laycock]

        Michael Paulsen is right that that the US Catholic Conference and
the National Right to Life Committee successfully opposed RFRA for more than
two years.  They feared that the Court would overrule Roe, that women would
then claim religious motivation for their abortions, and that the Court
would find a right to abortion under RFRA.  Their deepest fear was that once
this right was established, abortion clinics would have patients check a box
on a form claiming religious motivation, and that nothing would have changed.

        Mike questions whether this is a realistic fear if the Orthodox
Jewish teaching on abortion is only to save the life of the mother.  There
are multiple answers to that question.  First, Jewish teaching invoked the
life-of-the-mother exception in a broader range of circumstances than
Catholic teaching -- the threat did not have to be so immediate.  Second,
Orthodox Jewish teaching was not the only teaching the abortion-motivated
RFRA opponents were worried about. It was the teaching they most respected,
because it was the closest to their own views.  But they also worried about
Reform Jews and liberal Protestants who were claiming a religious right to
abortion.  There was a free exercise claim pending  at the time in the Jane
Liberty litigation against Utah's abortion statute.

        But I think Michael's basic point is right:  this was never a
realistic fear.  I never thought it plausible that the Court would take the
political heat and internal division required to overrule Roe, and then do
it all over again under RFRA.  Deeply committed pro-life individuals and
organizations supporting RFRA took the same view.  But Henry Hyde thought
the fear was realistic, and so the bill could not move without an abortion
proviso.  An abortion proviso was impossible to draft without splitting the
Coalition; the pro-life and pro-choice wings could not agree on any language
that both sides thought was abortion neutral.  They could agree only not to
say anything, and they couldn't get Hyde or the Catholic Conference to agree
to that.  So the bill went nowhere.

        After Casey and the Clinton election, the prospects of overruling
Roe faded dramatically, and the issue went away.  Rep. Hyde and the Catholic
Conference supported the bill, the National Right to Life Committee dropped
its opposition, and the bill passed.  The principal legacy of the abortion
fight is that it made a lot of legislative history on the question of
religious compulsion vs. religious motivation vs. religious permission.  The
abortion-motivated opponents wanted an amendment to limit the bill to
religious compulsion; they didn't get it.  The supporters of the bill,
including the lead sponsor in the House, said that religious permission (my
religion does not forbid abortion, therefore I have a free exercise right to
abortion) was not enough.  The requirement was a substantial or predominant
religious motivation.

        Some of the citations for this legislative history are in the
article Buzz Thomas and I did at 73 Tex. L. Rev. 209 (1994).

Douglas Laycock
The University of Texas School of Law
727 E. 26th St.
Austin, TX  78705

512-471-3275 (voice)
512-471-6988 (fax)
dlaycock at mail.law.utexas.edu